April 24, 2010

UPDATE: Ann Althouse disagrees with me on the Guaranty Clause issue, saying that it would probably be considered a “political question.” That’s certainly the standard take on Guaranty Clause issues, but here I’m not so sure. First, the primary case authority for the notion that Guaranty Clause issues are political questions is Luther v. Borden, which has been expanded considerably beyond its actual holding. (There’s dicta in New York v. U.S. suggesting that it’s been over-read in that regard). In addition, the “protect from invasion” language in Article IV Sec. 4 relates to language in Article I Sec. 10, which provides:

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Arizona is not — yet, anyway — engaging in war, but it’s clear from this language that it’s constitutionally empowered to do so when invaded, even if the federal government does nothing (and perhaps even in the face of federal objection). Arizona’s legislation is passed in response to armed people coming across the border and killing Arizonans, which sounds rather like an invasion. If that’s the case, then lesser responses to invasion are, arguably, permissible as well in the face of federal inaction. What the courts will do with this is, of course, uncertain (and likely not tied very closely to the actual text of the Constitution!) but it’s certainly not a frivolous argument. (Bumped).

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